People v. Tapia CA2/1

Filed 9/30/15 P. v. Tapia CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B262350

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. KA103823) v.

DAVID TAPIA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. George Genesta, Judge. Affirmed. ______

The Defenders Law Group and Carlos J. Perez for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson, and Idan Ivri, Deputy Attorneys General, for Plaintiff and Respondent. ______

Defendant David Tapia assaulted his former stepfather with a pocket knife. A jury convicted him of assault with a deadly weapon and inflicting injury on an elder. He contends that the evidence was insufficient to support the jury’s finding that the pocket knife was a deadly weapon. He also contends that the trial court abused its discretion by imposing the upper term for the conviction of inflicting injury on an elder. We reject both arguments and affirm the judgment. FACTUAL AND PROCEDURAL SUMMARY Jesus Vargas Gallegos is defendant’s former stepfather. He and defendant’s mother, Delores Otero, divorced in approximately 2009. Thereafter, a dispute arose between them concerning the proceeds from the sale of a house; Gallegos believed Otero owed him $50,000. Gallegos told defendant he wanted the money. On November 23, 2013, at approximately 11:00 p.m., the 77-year-old Gallegos was asleep on a sofa in his living room. Although he shared the house with four others, only his 14-year-old grandson, Marc Deleon, was home at the time. Defendant, who lived about one or two miles away, entered the house through an unlocked door. He smelled of alcohol and appeared to be intoxicated. He had a cast on one leg. Defendant woke Gallegos and began hitting him with his fists. He pulled out a pocket knife and poked and stabbed Gallegos in his chest, shoulder, and arms. The knife blade was between two and three inches long. As he attacked Gallegos, defendant said he was going to beat or kill him so that Gallegos would stop asking Otero for money. Deleon watched the attack from his bedroom through an opening in the doorway. Defendant dragged Gallegos about six feet from the sofa to the bathroom, then “dumped” or “threw” him into the bathtub. He repeated his threat to kill Gallegos. He banged Gallegos’s head against the bathtub three or four times, causing Gallegos to lose consciousness. He continued to punch Gallegos and stab him with the knife. After defendant left, Deleon called his father. The father arrived home about 15 or 20 minutes later and called the police. A responding police officer observed that Gallegos was disoriented and “covered in blood.” Gallegos had “some gashes” on his